Court System Understanding the Court Term Paper

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In his joint article with Oleg Smirnov, "Drift, Draft, or Drag: How the Supremes React to New Members," Smith takes an even closer look at the Supreme Court and the history of its political (or interpretive) makeup. Specifically, these authors find that the Court counter-balances changes to its ideological makeup through the addition of new members by changes in the overall interpretative stances of opposing justices -- the addition of more liberal justices results in conservative justices becoming more conservative, and the addition of conservative justices leads to more liberal thinking on the part of liberal justices. This view sees the Supreme Court and courts in general as an essentially political body, just like any other political body at work in the federal government or at other levels of government within any given society, whether past or present.

A Mediation of Theories and Practice

Though the three theories briefly described above approach the issue of court function and behavior from very different angles, they are also quite heavily interrelated, commenting on and informing each other as well as raising some points of disagreement. Smith and Smirnov's assertion that the Supreme Court is essentially a political body can be seen as a direct modern example of Shapiro's assertion that the replacement of direct consent with laws leads to destabilization and politicization of the judicial process. Considering that Justices are appointed by an individual elected by what is usually a fairly slim proportion of voters (and is almost never a majority of voting-eligible citizens), it is hardly surprising that some might feel as though the courts do not represent their interests.

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At the same time, the practice of counter-balancing and the overall trend of stabilization that Smith and Smirnov observe in the Supreme Court seems to be a manifestation of the meditative principles that Shapiro sees as inherently lacking in the current Anglo-American court systems, albeit in a grander and yet more subtle sense than the direct case-by-case manner proposed by Shapiro. The reverse hierarchical structure of the United States federal court system proposed by Smith more wholly -- and more complexly -- agrees with Shapiro's analysis of the politicization of the courts through their reliance on law rather than consent. Though the judicial system is specifically designed to ensure that decisions are rendered consistently at all levels of the federal courts, Smith finds that this is being put into practice in reverse, with lower courts rendering decisions based on perceptions of the Supreme Court's preferences. This increases the politicization of the court system as a whole and makes individual judges and courts less responsive to the individuals appearing in the courts than they otherwise would be.

Conclusion

A fully accepted explanation of the court system has yet to be achieved in the literature, and is certainly beyond the scope of this paper. The agreement that exists between the disparate arguments presented above, however, suggests that these authors are formulating a new trend in judicial theory that could soon replace the inadequate and simplified view taken by many of the courts. This understanding will doubtless continue to be refined for decades, if not centuries......

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